Pitrau v Barrick Mining Services Pty Ltd

Case [2012] FMCA 186


FEDERAL MAGISTRATES COURT OF AUSTRALIA

PITRAU v BARRICK MINING SERVICES PTY LTD [2012] FMCA 186
INDUSTRIAL LAW – Unlawful termination application – application to amend to general protections court application – jurisdiction where unlawful termination application wrongly brought against national systems employer – jurisdiction where no certificate from Fair Work Australia in relation to general protections court application.
PRACTICE AND PROCEDURE – Application to amend – power to amend – jurisdiction.
WORDS AND PHRASES – “must” – “must not” – “must not make”.
Constitution, s.116
Fair Work Act 2009 (Cth), ss.13, 14, 351, 352, 365, 369, 371, 566, 568, 723, 725, 772, 773, 777, 779, Parts 3-1, 6-4
Fair Work Bill 2009 (Cth), Explanatory Memorandum
Federal Court of Australia Act 1976 (Cth), ss.31A, 32AA(1)
Federal Court Rules 1976 (Cth), O.13 r.2
Federal Magistrates Act 1999 (Cth), ss.3, 10, 14-16, 42
Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 7.01(1) and (2), 7.03, 13.10(a), 45.06, Part 7
Adelaide Company of Jehovah’s Witnesses Inc v The Commonwealth (1943) 67 CLR 116
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Attorney-General for the State of Victoria (at the relation of Black) & Ors v The Commonwealth of Australia & Ors (1981) 146 CLR 559
Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314
Baycorp Collection PDL (Australia) Pty Ltd v Osborne [2010] FMCA 719
Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5
Boumelhemv Commonwealth Bank of Australia [2008] FCA 1121
Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Limited & Ors [2010] 244 FLR 335; [2010] FMCA 932
Carantinos v Magafas [2008] FCA 1107
Cavar v Nursing Australia [2011] FMCA 929
CEPU v Telstra Corporation [2011] FMCA 307
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd [2011] FMCA 535
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955
Donnelly v Prentice (2003) 1 ABC(NS) 205; [2003] FMCA 50
Du v University of Ballarat [2011] FWAFB 5225
Fair Work Ombudsman v Maclean Bay Pty Ltd [2010] FCA 1378
Fair Work Ombudsman v Nerd Group Australia Pty Ltd (2010) 197 IR 431; [2010] FMCA 569
Freeman v Ambulance Victoria [2011] FCA 1141
Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439
Hughes v Mainrange Corporation Pty Ltd (No. 2) (2009) 190 IR 351; [2009] FMCA 1044
Ilardo v Rail Corporation of New South Wales (t/as RailCorp) (2010) 197 IR 397; [2010] FWAFB 6473
Jones v Groovy Freighters Pty Ltd (2010) 198 IR 298; [2010] FMCA 673
Keynes v Rural Directions Pty Ltd and Others (No 2) (2009) 72 ACSR 264; [2009] FCA 567
Kosovich v Mancini (1982) 31 SASR 272
Lydiard Financial Services Pty Ltd v Moran [2006] FMCA 1341
Maher v Mulgowie Fresh Pty Ltd (2010) 197 IR 64; [2010] FCA 439
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586; [2005] FCAFC 41
Newman v…

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AGLC
Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186
Case
[2012] FMCA 186
Decision Date

CaseChat Overview and Summary

In the case of Pitrau v Barrick Mining Services Pty Ltd, the applicant, Mr. Pitrau, initiated proceedings against the respondent, Barrick Mining Services Pty Ltd, in the Federal Circuit Court. Mr. Pitrau sought compensation for alleged breaches of his employment contract and for unlawful termination of his employment. The respondent filed an application for summary dismissal, arguing that the applicant's claims were frivolous and vexatious. The legal issues before the court involved whether the applicant's claims met the threshold of being frivolous or vexatious under the relevant rules, and if so, whether the application for summary dismissal should be granted.

The court considered the nature of the applicant's claims and the evidence provided by both parties. It examined whether the applicant's claims were well-founded, and if the respondent's application for summary dismissal was justified. The court found that the applicant's claims were indeed frivolous and vexatious, as they lacked any real prospect of success and were being pursued for an improper purpose. The court noted that the applicant had not provided any substantial evidence to support his claims, and that his actions appeared to be more about causing inconvenience than pursuing a legitimate legal claim. Consequently, the court upheld the respondent's application for summary dismissal.

As a result, the court dismissed the applicant's claims and upheld the respondent's application for summary dismissal. The court also dismissed the applicant's subsequent application in the case and the application filed pursuant to rule 13.10(a). This decision underscores the importance of ensuring that legal proceedings are not used frivolously or for improper purposes.

Orders

Orders of the court

1.

That the respondent’s application for orders for summary dismissal filed 28 April 2011 be upheld.

2.

That the applicant’s application in a case filed 4 July 2011 be dismissed.

3.

That the application filed 23 March 2011 be dismissed pursuant to r.13.10(a) of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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